Christidou v Chris
[2012] VSC 626
•18 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 10855 of 2009
IN THE MATTER OF AN APPLICATION PURSUANT TO PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958
and
IN THE MATTER OF THE WILL AND ESTATE OF RUBY RABY CHRIS, DECEASED
| NATASA CHRISTIDOU | Plaintiff |
| v | |
| MARY CHRIS (who is sued as the executor of the will and estate of RUBY RABY CHRIS, deceased) | Defendant |
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JUDGE: | McMillan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 and 22 June 2012 | |
DATE OF JUDGMENT: | 18 December 2012 | |
CASE MAY BE CITED AS: | Christidou v Chris | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 626 | |
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TESTATOR’S FAMILY MAINTENANCE – Claim by adult daughter of the deceased – Deceased survived by three adult children – Small estate – Legacies to the plaintiffs and the other two adult children of the deceased – Principal asset of the estate left to the grandson of the deceased – Application under Part IV of the Administration and Probate Act 1958 s 91.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Sparke | Slater and Gordon |
| For the Defendant | L Spaulding (solicitor) | Brighton Legal P/L |
HER HONOUR:
Introduction
In this proceeding, Natasa Christidou (‘Natasa’) seeks further provision for her maintenance and support from the estate of her late mother, Ruby Raby Chris (‘the deceased’), pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’).
Background
The deceased died on 23 October 2007 leaving a will dated 5 July 2007 (‘the will’). Probate of the will was granted to the defendant, Fotini Maria Christidis (‘Mary’) on 24 December 2007.
The deceased was survived by her three adult daughters, Natasa, born 9 January 1969, Evangelia Chris, now known as Lisa Mirigliani (‘Lisa’), born 11 November 1970 and Mary, born 6 December 1971.
Mary has one child, Noah Konstantinos (‘Noah’), now aged twelve years. Lisa has four children, now aged eleven, seven, four and three years.
By her will, the deceased gave the following:
(a) a legacy of $20 000 to Mary;
(b) a legacy of $40 000 to Natasa;
(c) a legacy of $5000 to Lisa;
(d) a legacy of $10 000 to be divided amongst the deceased’s five grandchildren upon their attaining the age of 21;
(e) a specific devise of Unit 6, 38–40 Broadway, Bonbeach (‘the unit’) to her grandson, Noah, on terms that it not be sold and that he be permitted to live in it until he attain the age of 35 years; and
(f) the residue of the estate to Noah.
The inventory of assets and liabilities dated 17 December 2007 shows that the estate of the deceased was, at that time, valued at $362 656.24, comprising:
(a) the unit valued at $220 000;
(b) bank accounts totalling approximately $141 049.86;
(c) a motor vehicle valued at $3100; and
(d) liabilities of $1493.62.
None of the legatees under the will has received any amounts due to them apart from Natasa, who received the sum of $20 000 in early October 2010, as agreed at that time by the parties.
At the time of the hearing, Mary lived in the unit with her son, Noah. There is no current valuation of the unit.
As the executrix of the estate, Mary was required to file an affidavit of financial position of the estate at the date of the hearing. This was not done. Attempts were made by her solicitor, Mr Spaulding, to explain the financial state of the estate without filing an affidavit. The hearing proceeded on the premise that the only remaining asset of the estate was the unit.
The parties agreed that the current state of repair of the unit is poor. Mary alleges that Natasa caused this to occur prior to her vacating the unit on or around 22 October 2010. Mr Spaulding took it upon himself to put forward his own view of the current value of the unit, being in the vicinity of $250 000 to $280 000, based on recent sales in the same block of units. These statements do not assist and, in any event, recent sales of other units do not compare, given this unit’s state of disrepair. For the purposes of this proceeding, I shall assume its value to be $220 000, being the value set out in the inventory of assets of the deceased.
At the date of death of the deceased, Mary was bankrupt. She was discharged from bankruptcy in 2009. On 3 February 2009, Lisa was made bankrupt. Prior to her bankruptcy, Lisa made an application for further provision from the estate.[1] In September 2010, Lisa’s trustee in bankruptcy discontinued the claim.
[1] On 8 February 2008.
On the first day of the proceeding, Mary made an application for an extension of the time within which to issue proceedings seeking further provision from the estate. That application was dismissed with costs to be paid by Mary personally.
Principles to Be Applied
In an application for further provision made under s 91 of the Act, the Court must decide:
(a) At the date of her death, did the deceased have a responsibility to make provision for the maintenance and support of Natasa?
(b) If so, does the deceased’s will make adequate provision for her proper maintenance and support?
(c) If not, what is the amount of provision that should be ordered?
In considering these questions, the Court must have regard to the matters set out in ss 91(4)(e)–(o) of the Act and, under s 91(4)(p), have regard to ‘any other matter the Court considers relevant’.
The basis of the jurisdiction is responsibility. Traditionally this was expressed as a ‘moral duty’ or ‘moral obligation’. In determining these questions, the Court must consider what provision a wise and just testator would have thought it his or her moral duty to make for an applicant.
The approach taken in Bosch v Perpetual Trustee Co Ltd is frequently referred to with approval:[2]
Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in Re Allen, Allen v Manchester: ‘The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances’.[3]
[2] See, eg, Grey v Harrison [1997] 2 VR 359, 365–6 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 815–19 (Ormiston J); Lee v Hearn (2002) 7 VR 595, 604 (Warren J).
[3] [1938] AC 463, 478–9.
In applying this test, the Court must also give considerable weight to freedom of testation and only interfere with the terms of a will if the testator has failed in his or her moral duty.[4] As expressed recently by Bell J in Whitehead v State Trustees Ltd:
when deciding whether to make an order for provision under s 91(1), preserving the deceased’s freedom of testamentary disposition is a significant discretionary consideration.[5]
[4] See, eg, Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60]; Lee v Hearn (2005) 11 VR 270, 273–4; Grey v Harrison [1997] 2 VR 359, 363.
[5] [2011] VSC 424 (2 September 2011) [40].
A plaintiff bears the onus of proving that the deceased had a responsibility to make provision for his or her maintenance and support and failed to do so. In Collicoat v McMillan,[6] Ormiston J elucidated the concept of moral claim and obligation as follows:
In my opinion the expression ‘moral claim’ has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That ‘moral obligation’, as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[7]
[6][1999] 3 VR 803.
[7] Ibid 818. See also Blair v Blair (2004) 10 VR 69; Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61].
Whether the deceased testator failed to make adequate provision for the proper maintenance and support of an applicant is determined by a consideration of the facts and matters known to the deceased at the time of his or her death. A wise and just testator is deemed to be aware of relevant circumstances prevailing at the time of death, but the testator will only be deemed to be aware of subsequent events to the extent that they were reasonably foreseeable at the time of death.[8]
[8]Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 507–8.
The time for determining how much provision should be awarded is at the trial, when the Court can consider the applicant’s position in the light of any events that have occurred since the death of the testator.[9]
[9] Ibid; Blore v Lang (1960) 104 CLR 124, 130; Prosser v Twiss [1970] VR 225, 232.
Natasa’s Position
Natasa is 43 years old. She described a turbulent, traumatic and unpleasant upbringing, including alleged sexual and emotional abuse by her father from a very young age until she was nine years old. She also described emotional abuse by the deceased.
Natasa described a difficult relationship with the deceased in her early years. She claimed that the deceased pierced her right eyeball with a sewing needle when she was approximately 10 years old. As a result, Natasa subsequently developed a cataract in that eye. Contrary to this claim by Natasa, reference was made to an affidavit filed by her father in the Family Court where her father claimed that Natasa’s mother hit Natasa in the eye, which caused the cataract.[10] Ultimately, the cataract was surgically treated by removing a large portion of the pupil. Natasa suffered a retinal detachment after the surgery and is permanently blind in the right eye.
[10] Transcript of Proceedings, Christidou v Chris (Supreme Court of Victoria, McMillan J, 21 June 2012) 196.
Natasa gave evidence that the deceased was aware of the abuse by Natasa’s father but did not protect her from it. She said that during her childhood, the deceased had an uncontrollable temper, and used alcohol and valium. She described being locked in a cupboard by her mother for hours or all day. The deceased ultimately abandoned the family and, when she did so, told Natasa ‘you can be his wife now’ and threw her wedding ring at Natasa. This incident is referred to in an affidavit sworn by the father and filed in his proceedings against the deceased in the Family Court.[11]
[11] Ibid 195.
Natasa received no formal post-secondary education. From the age of nine until eighteen, Natasa claims that she was forced into child prostitution by her father.
In 1983, the deceased was involuntarily committed to Larundel Hospital. By that time Natasa was a ward of the State in care at the Winlaton facility. Natasa was released from being a ward of the State but still had an extremely difficult relationship with her father. As a result, she ran away and by June 1984, she was again made a ward of the State for a year. She was released from the wardship when she was 16 years old.
As a result of her father’s behaviour, the deceased’s behaviour, and her perceived abandonment, Natasa was ‘mad’ at the deceased and felt worthless and unloved. By February 1989, Natasa managed to leave Australia and lived in Greece. She said that she did well in Greece for a time because no one in Greece knew her past. She worked as a musician and then later as a host of a children’s television programme. She was paid a small pension by the Greek government because of her visual impairment.
By 1994, while she was living and working in Greece, Natasa reconnected with the deceased. Around the time of the reconnection, Natasa recalls a telephone conversation with the deceased in which she said ‘I love you’ and the deceased responded ‘I love me too’, rather than ‘I love you too’.
Natasa’s relationship with the deceased was geographically distant while Natasa lived in Greece, but she referred to a visit by the deceased to Greece in 1997, when the deceased stayed with her for five months. Natasa wrote to the deceased, spoke with her on the telephone and sent presents to her. As evidence of the emotional connection between her and the deceased, Natasa referred to letters from the deceased and gave oral evidence as to the closeness of their relationship.[12]
[12] See Transcript of Proceedings, Christidou v Chris (Supreme Court of Victoria, McMillan J, 21 June 2012) 128 and following.
Natasa’s working life in Greece started to wane in mid-2004 as her depression and the results of her traumatic and difficult childhood took their toll. She was diagnosed as suffering from major depression. Her career in Greece ended.
Natasa said that from time to time she assisted the deceased and her sisters financially, whenever they requested it. Over the period from 2000 to mid-2005, Natasa gave Mary at least $60 000, including in 2004, when she paid for Mary and Noah to visit her twice whilst she was living in Greece, the first time for a few months and the second time for six weeks. In her affidavit sworn 10 August 2010, Mary denied that Natasa supported her but, in her oral evidence, Mary said that the money sent to her by Natasa ‘added up to tens of thousands of dollars over time’.[13]
[13] Ibid 198.
The deceased was aware of Natasa’s emotional and financial troubles and, by late 2006, the deceased was very concerned for Natasa’s welfare and convinced Natasa to return to Australia to her care. The deceased sent money to Natasa to enable her to come back home to live with her in Australia. Natasa arrived back in Victoria in February 2007 and lived with the deceased until October 2007. She was dependent on the deceased.
In June 2007, the deceased, Natasa and Mary discussed the position of Natasa if she (the deceased) died before Natasa’s citizenship was proved. For Natasa to extend her visa, she was required to depart the country. The deceased said to both of them that Natasa could stay in the unit for as long as she needed. The deceased also told Mary that she worried about Natasa. This evidence was not challenged by Mary.
Natasa’s current financial position[14] is:
[14] This evidence was supported by documents tendered by the plaintiff as part of exhibit P1.
(a) She currently receives a Centrelink disability pension of $585.50 per fortnight, as well as a mobility allowance of $86 per fortnight.
(b) She receives an annual ‘continence allowance’ of $506.30.
(c) She owns a unit in Morwell, which was valued at between $65 000 and $70 000 in June 2012.[15] That unit requires significant repairs as detailed below.
[15] Affidavits of Christopher Davis, licensed estate agent in Morwell, sworn 17 February 2012 and 18 June 2012.
(d) Her motor vehicle was repossessed by the finance company in August 2011.
(e) Her current liabilities include:
(i) a mortgage of approximately $64 000; and
(ii) as at June 2012, a total debt of approximately $38 523.25 to a variety of creditors, the details of which are listed in exhibit P1.
(f) Her outgoings include:
(i) mortgage payments of approximately $370 per month;
(ii) council home help fees of $18 per week;
(iii) $39 per week for adult diapers;
(iv) $38 per week as part of her debt repayment arrangements; and
(v) ordinary living expenses such as utilities, food, transport, rates and insurance.
Natasa has significant needs due to her poor health. Her health conditions include severe visual disability, significant mobility difficulties, shoulder problems, osteoarthritis of the cervical spine and canal stenosis.
In order for her current unit to be made appropriate for her to live in, it requires significant alterations, including:
(a) installation of a front door with a security screen;
(b) installation of a kitchen;
(c) installation of a shower without a step and a larger bathroom in order for Natasa to be able to access the bathroom with her walking frame. The State-wide equipment programme can contribute $4800 towards a safe bathroom, but Natasa estimates the costs of the bathroom alterations at between $40 000 and $50 000;
(d) repair of a gas leak;
(e) installation of a wall heater at a cost of approximately $2000; and
(f) installation of a hot water service at a cost of approximately $1500.
Alternatively, it was submitted that, if funds were available, Natasa could relocate to a unit that would not require maintenance, is located at ground level and has two bedrooms to accommodate a live-in carer for Natasa.
Owing to her visual disability, Natasa requires a number of aides totalling approximately $10 000 including:
(a) visual and associated aides valued at approximately $115;
(b) a handheld magnifier valued at approximately $170;
(c) a large document magnifier valued at approximately $5500;
(d) talking computer software valued at approximately $1389; and
(e) a motorised eye, after her right eyeball is removed, at a cost of between $10 000 and $20 000.
In respect of her other health issues, Natasa requires:
(a) a commode at a cost of approximately $250 to $300;
(b) pain medication at a cost of approximately $85 per two months; and
(c) hearing aids quoted at a cost of approximately $750.
Natasa also has a history of depression and anxiety and has previously attempted suicide. She gave evidence that she has agoraphobia and has been diagnosed with panic attacks and a ‘significant personality pathology’. Ideally, she would like to see a named specialist psychologist but this would require her travelling to Melbourne.
Natasa is entirely reliant on home care. She receives three hours of care from her local council per week but is not entitled to receive any more. A carer service costs approximately $38 per hour.
Counsel for Natasa submitted that, if Natasa relocated to a unit that did not need maintenance and had two bedrooms (the second bedroom for a carer), the cost for such units in Morwell is in the range of $200 000 to $250 000. Alternatively, if this were not possible, it was submitted that Natasa should have sufficient funds to carry out the repairs and renovations to her existing unit, as well as paying out her mortgage. In addition, she seeks a nest egg to enable her to meet her future expenses and support.
It was recognised by counsel for Natasa that the size of the estate was such that the various options could be impossible to achieve because the costs of the litigation appear to be far higher than originally estimated by the parties. In this circumstance, counsel submitted that Natasa should receive the unit on the basis that it be sold and, from the proceeds of sale, a small legacy should be paid to Noah (in the range of $20 000, representing his mother’s legacy) with Natasa retaining the balance of the sale proceeds for her own use. This proposal, it was submitted, had the benefit of Natasa taking the burden of the market and any repair problems said to have been caused by her at the time she left the unit.
Counsel initially submitted that Lisa should also receive her legacy of $5000 but subsequently retracted that proposal in view of the higher figure for the estimated legal costs. It was also submitted by counsel that the legacy to the four grandchildren should be abandoned.
Mary’s Position
Both Mary and Natasa agreed that Noah had a close relationship with the deceased. Mary gave evidence that Noah has some special learning needs and difficulties. Psychological evidence was tendered by Mary that stated Noah had low to average cognition and intellectual functioning. Mary said that she could not provide for all of Noah’s learning needs and that she was looking to the estate for greater provision for him, even though no application had been made in respect of further provision for Noah.
Although Mary said that she did not know whether her father abused Natasa when she was a child, she considered that, because her father denied the alleged sexual and emotional abuse at the time and no charges have been laid since, such abuse did not occur. Unusually, Mary brought her father to Court with her. His presence in the court room caused obvious distress to Natasa. He was not called to give evidence on behalf of the estate. Mary said that she would take her father’s side on any questions of his alleged sexual and emotional abuse of Natasa.
Mary said she had a good relationship with the deceased as a young child. When the deceased and their father separated, Mary and Lisa lived with their father. Mary gave evidence that, once she left home at the age of 16, she had contact with the deceased approximately every few months.
Mary said she had limited contact with Natasa whilst Natasa was living in Greece. Mary denied that Natasa had a close relationship with the deceased. She thought that Natasa had abandoned her family in Australia to live in Greece and only returned after 18 years when her mother was towards her last years of living. She agreed that Natasa moved into the deceased’s unit when she returned to Australia.
Mary’s Submissions
Mr Spaulding made a number of submissions on behalf of the estate, some relevant and others not so. Importantly, he did not submit that Natasa should not receive further provision from the estate, rather he submitted that provision should be limited as summarised below.
Mr Spaulding agreed with counsel for Natasa that it was inevitable that the unit must be sold. He submitted that the sale proceeds should be used to meet the estate’s significant legal and other costs, the executor’s commission and payment of various legacies. When the competing claims of the beneficiaries were weighed up, Mr Spaulding considered the estate of the deceased should be distributed with the following allowances:
(a) an estimated $10 000 to $20 000 for the cost of improving the unit for sale;
(b) an estimated $10 000 for selling and advertising costs;
(c) up to $18 207.49 for executor’s commission, being up to 5% on $364 149, the inventory value of the estate;
(d) the payment of Mary’s legal costs for her application for an extension of time within which to issue proceedings seeking further provision out of the estate made on the first day of the trial;
(e) payment of the estate’s legal costs and the plaintiff’s legal costs on a solicitor/client basis;
(f) a legacy of $20 000 to Noah and a legacy of $5000 to the other four grandchildren; and
(g) the remaining balance of the estate to Natasa.
In support of his proposed distribution of the estate, Mr Spaulding relied on the following matters:
(a) As Natasa does not have the financial resources to purchase the unit and discharge the liabilities of the estate, the ability to improve it or put it into a proper state for sale, the most cost-effective way is for the estate to pay for this so that the unit can be sold.[16]
[16]Mr Spaulding could not elaborate on how the estate would pay for these expenses.
(b) There are competing claims on the estate and Noah should be paid the legacy that was left to Mary because, if it were paid to Mary, her creditors would receive it. The remaining four grandchildren should be given the foregone $5000 legacy that was left to Lisa.
(c) There is a significant family dispute as to whether or not any alleged sexual assault by her father of Natasa actually occurred.
(d) Mary does not agree that Natasa came to Australia at the insistence of the deceased to live with her mother.
(e) In distributing the estate, Natasa’s character and conduct many years after the death of the deceased should be taken into account. Mr Spaulding contended that Natasa did not come to the Court ‘with clean hands’ because she said in her affidavit evidence that her assets at 8 February 2012 consisted of a car worth $12 000 when she had made certain statements in her financial application to purchase her unit in Morwell, which were not consistent with her affidavit evidence. Terms of settlement of Natasa’s claim were subsequently entered into on the basis of that affidavit evidence. As a result of the inconsistency, the terms of settlement were subsequently abandoned by Mary. This, it was submitted, meant that Natasa was guilty of disentitling conduct because she had attempted to bolster her claim by telling lies about her assets and caused the terms of settlement to be abandoned. This meant the estate was financially depleted and final distribution of the estate could not occur. In that subsequent period, Natasa’s health and financial position has deteriorated and she has, therefore, ‘bolstered’ her claim and decreased the size of the estate because of the increased legal fees.
Matters to Be Considered under the Act
In setting out the respective positions of both Natasa and Mary in some detail, I have considered the matters set out under ss 91(4)(e)–(j), (m) of the Act. In my view, there are no relevant matters to be considered under ss 91(4)(k), (l), (n) of the Act.[17]
[17] These subsections include ‘any contribution … to building up the estate’, ‘any benefits previously given by the deceased person to any applicant or to any beneficiary’ and ‘the liability of any other person to maintain the applicant’.
As stated, Mr Spaulding relied on the character and conduct of Natasa[18] after the death of the deceased in the context of this ongoing litigation. He submitted that these matters should be taken into account in the distribution of the estate under Section 91(4)(o) of the Act, being ‘the character and conduct of the applicant’.
[18]See above paragraph [51](e).
Finally, under s 91(4)(p) of the Act, being ‘any other matter the Court considers relevant’, I consider that the Court should have regard to the fact that, because Mary was bankrupt at the date of death, the legacy of $20,000 to her under the will would only benefit her creditors.
Conclusions
In relation to the legacy to Mary, I agree with the submissions that it should be extinguished. This is particularly so because Mary is unable to receive its benefit and because the estate is small. In my view, Mary’s legacy should be used to provide for the beneficiaries, other than Natasa, under the will.
In regard to the credibility of the witnesses, where the evidence of Natasa and Mary conflicts, I prefer the evidence of Natasa. Mary appears to have a tempestuous relationship with Natasa. Not only did she wish to air her many and various grievances towards Natasa during this proceeding, which were irrelevant to the issues in this proceeding or contradictory, she also defends this proceeding on the basis that she is fighting for Noah’s interests under the will and that ‘her sister has pushed her too far’. In addition, Mary seemed unaware of her obligations as the executor of the estate. The cash component of the estate has not been adequately accounted for and she did not provide an affidavit of the financial position of the estate, despite the trial taking place over three days. Although attempts were made by Mr Spaulding to explain why the estate now comprises, in effect, only the unit, it is unsatisfactory to conduct the litigation in this manner.
Further, while Mary gave evidence that appeared to be resisting Natasa’s application, Mr Spaulding, on her behalf, acknowledged that Natasa should receive further provision from the estate of the deceased and submitted that the unit should be sold. He disagreed with the distribution proposal of the sale proceeds of the unit as submitted by counsel for Natasa and disagreed that Natasa should be given the unit to sell, stating that he could attend to the sale on Mary’s behalf.
In relation to Mr Spaulding’s submissions regarding the character and conduct of Natasa after the death of the deceased, in my view, such matters are not relevant in considering the task that must be undertaken by the Court. In any event, given the description of the circumstances for the omission in her affidavit, I consider that Natasa gave reasonable and adequate reasons for it.[19] In addition, there is little or no equity in her unit. Natasa purchased the unit for the sum of $81 000 with a bank loan of $65 898 and a First Home Owner Grant of $16 000. She quickly fell into arrears. The value of the unit is now between $65 000 and $70 000.[20]
[19] Transcript of Proceedings, Christidou v Chris (Supreme Court of Victoria, McMillan J, 21 June 2012) 152.
[20] See above n 15.
In my view, in considering whether the deceased had a responsibility at the date of her death to make provision for the maintenance and support of Natasa and whether she failed to do so, regard should be had to the fact that, at the date of her death, the deceased knew that:
(a) Natasa had suffered significant childhood trauma and abuse from both herself and Natasa’s father;
(b) Natasa had been depressed whilst in Greece and her entertainment career in Greece had ended;
(c) Natasa had no financial security for the future;
(d) Natasa’s Australian citizenship was uncertain;
(e) she had told Natasa and Mary that Natasa’s citizenship was uncertain and that Natasa could remain in the unit for as long as she needed;
(f) Natasa had limited visual ability and other significant health needs;
(g) Natasa lived as a dependent of the deceased on her return to Australia from Greece; and
(h) Natasa was unemployed with no income; had not qualified for Centrelink benefits in August 2008; and survived on the deceased’s charity and the charity of others, including State care.
Although the value of the estate is now small, the Court is still required to consider all the relevant circumstances before a decision is made.[21] The smallness of the estate is significant in that, in some circumstances, not all of the wishes of a testator can always be met. The Court necessarily should give weight to the paramount claim.[22] The obligation of a parent to a child, particularly where that child’s needs are pressing, is higher than that of a grandparent to a grandchild.[23] In my view, in the circumstances of this case, Natasa has a strong case for further provision from the estate. I consider that the deceased’s wishes to benefit a grandchild should not be placed ahead of her obligations to Natasa, particularly when the deceased knew of the matters set out above.[24]
[21]Re Clayton [1966] 2 All ER 370, 371–2.
[22] See, eg, Cropley v Cropley [2002] NSWSC 349 (26 April 2002) [56], where the estate was insufficient to meet the claims of both widow and adult children and the Court gave weight to the ‘paramount’ claim of the widow.
[23]De Angelis v De Angelis [2003] VSC 432 (10 November 2003) [216].
[24] See above paragraph [48].
In relation to Noah, the deceased was never in a position of caring for Noah. Although Noah has some special needs, he has a mother and father who can provide for him. The position of the other four grandchildren is not pressing but merely the wish of the deceased, which can still be accommodated but not to the extent of the amounts as contained in the will.
In determining what a wise and just testator would consider Natasa should receive from her estate and knowing Natasa’s significant financial and health needs as described above, I consider that a wise and just testator would make such provision as to attempt to give Natasa a home and as much relief from her existing debt and ongoing expenses as can be achieved so far as possible within the confines of the size of the estate.
In my view, appropriate further provision for Natasa must be achieved by orders to the effect that the unit be given to Natasa on condition that she sell it forthwith and that from the net proceeds of sale, Natasa be required to pay the sum of $10 000 as a legacy to Noah, the sum of $6000 as a legacy to Lisa and the sum of $1000 to each of Lisa’s four children. The balance remaining after payment of the legacies is to remain with Natasa for her own benefit and use absolutely.
I will hear the parties as to the form of the orders and costs.
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